PEOPLE v. MASI (2021)

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Montgomery County (Catena, J.), entered February 20, 2019, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.

In full satisfaction of a four-count indictment, defendant pleaded guilty to sexual misconduct and was sentenced to six months in the local jail with a credit for time served.  The risk assessment instrument prepared in conjunction therewith presumptively classified defendant as a risk level two sex offender (95 points);  the People requested that defendant be classified accordingly, and defendant objected to the points assessed under risk factors 4 and 14.  By order entered February 20, 2019, County Court classified defendant as a risk level two sex offender, prompting this appeal.¹

Based upon our review of the record, we are satisfied that the People met their burden of “establish[ing] the risk level classification by clear and convincing evidence” (People v. Hackel, 185 A.D.3d 1118, 1119, 126 N.Y.S.3d 240 [2020] [internal quotation marks and citation omitted];  see People v. Benton, 185 A.D.3d 1103, 1104, 125 N.Y.S.3d 206 [2020], lv denied 35 N.Y.3d 916, 2020 WL 6169835 [2020];  People v. Munafo, 119 A.D.3d 1102, 1102, 990 N.Y.S.2d 135 [2014]).  The assessment of points under risk factor 4 (duration of offense/continuing course of sexual misconduct) is warranted where a defendant has, as relevant here, engaged in “two or more acts of sexual contact, at least one of which is an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, which acts are separated in time by at least 24 hours” (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 10 [2006];  see generally People v. Hinson, 170 A.D.3d 1385, 1387, 94 N.Y.S.3d 738 [2019]).  The victim's grand jury testimony, which constitutes reliable hearsay (see People v. Henry, 182 A.D.3d 939, 940, 122 N.Y.S.3d 197 [2020], lv denied 36 N.Y.3d 901, 2020 WL 6878064 [2020];  People v. Kruger, 88 A.D.3d 1169, 1170, 931 N.Y.S.2d 753 [2011], lv denied 18 N.Y.3d 806, 2012 WL 446245 [2012]), establishes that she had two sexual encounters with defendant – one involving oral sex and the other involving sexual intercourse – that occurred more than 24 hours apart.  Hence, the imposition of 20 points under this risk factor was warranted.

With respect to defendant's objection to the 15 points assessed under risk factor 14 (released without supervision), that factor “ ‘is premised on the theory that a sex offender should be supervised by a probation or parole officer who oversees a sex offender caseload or who otherwise specializes in the management of such offenders,’ and the risk assessment guidelines direct that ‘an offender who is released without such intensive supervision is assessed points in this category’ ” (People v. Valentine, 187 A.D.3d 1681, 1681–1682, 132 N.Y.S.3d 505 [2020], lv denied 36 N.Y.3d 907, 2021 WL 629331 [2021] [brackets omitted], quoting Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 17 [2006];  see People v. Saravia, 154 A.D.3d 1022, 1024, 61 N.Y.S.3d 723 [2017];  People v. Grimm, 107 A.D.3d 1040, 1043–1044, 967 N.Y.S.2d 189 [2013], lv denied 21 N.Y.3d 1042, 972 N.Y.S.2d 540, 995 N.E.2d 856 [2013]).  Thus, the mere fact that defendant was released without supervision justified the imposition of the points assessed for this risk factor (see People v. Valentine, 187 A.D.3d at 1681–1682, 132 N.Y.S.3d 505;  People v. Saravia, 154 A.D.3d at 1024, 61 N.Y.S.3d 723;  People v. Grimm, 107 A.D.3d at 1043–1044, 967 N.Y.S.2d 189) – regardless of the reasons underlying the nature of his release.  Moreover, even if we were to accept defendant's argument on this point, his risk assessment score (80 points) nonetheless would result in a presumptive risk level two classification.  To the extent that defendant asks this Court to consider a downward modification from such classification, we note that defendant made no such request at the underlying hearing, nor has he identified the existence of any mitigating factors.  Accordingly, County Court's order is in all respects affirmed.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   Although defendant's notice of appeal makes no mention of the amended order issued by County Court in November 2020, “this technical defect does not inhibit our addressing the merits of this appeal in the interest of judicial economy” (Matter of Estate of Stafford, 111 A.D.3d 1216, 1217 n. 1, 975 N.Y.S.2d 810 [2013] [internal quotation marks and citation omitted], lv denied 23 N.Y.3d 904, 2014 WL 2522073 [2014];  see CPLR 5520[c]).

Clark, J.

Egan Jr., J.P., Lynch, Pritzker and Colangelo, JJ., concur.